State ballot measures -- the name game

A 1919 Minnesota law says, 'The secretary of state shall provide an appropriate title' for every question on the ballot.

By
WILLIAM MCGEVERAN
and
MYRON ORFIELD

September 4, 2012 — 10:45am

Ken Blevins, Associated Press - ApGretchen Colby casts her vote Tuesday, May 8, 2012, at Belville Elementary School in Brunswick County, N.C. North Carolina could be the next state to pass a constitutional amendment defining marriage as solely between a man and a woman. Voters are casting their ballots Tuesday.

Supporters of two state constitutional amendments up for a vote this November object to the ballot titles that Secretary of State Mark Richie has chosen. They've sued to overturn them.

At the same time, Sen. Scott Newman, R-Hutchinson, declared that Ritchie had "thrown the Constitution and established case law out the window to serve his political interests" ("Ritchie's rewording is out of bounds," July 19).

Actually, our state's Constitution does provide quite a clear answer in this dispute -- but it's not the answer amendment supporters want to hear.

We are part of a bipartisan group of professors from all four of the state's law schools who submitted a brief supporting Ritchie's authority to choose titles for both the marriage amendment and the "voter ID" amendment. The Minnesota Supreme Court will hear oral arguments next week. But you don't have to be a law professor, or even a lawyer, to understand the constitutional argument. Junior high school civics will be plenty.

A Minnesota law, first enacted in 1919, says, "The secretary of state shall provide an appropriate title" for every question on the ballot. (Notice that's "shall," not "may" -- and that it's "appropriate," not "whatever the proposal's boosters prefer.") It's all part of the secretary's role as the state's chief election officer, which also includes everything from certifying voting systems to registering candidates.

There have been more than 100 ballot questions since 1919, and the secretary of state has always picked the titles without objection. Twenty-three other states have similar laws giving an executive officer authority in drafting ballot titles, summaries, captions or questions. There has never been a challenge to the power of the executive in any of those states, either.

THE LAW

A Minnesota law, first enacted in 1919, says, 'The secretary of state shall provide an appropriate title' for every question on the ballot. That's 'shall,' not 'may' -- and 'appropriate,' not 'whatever the proposal's boosters prefer.' That's 'shall,' not 'may' -- and 'appropriate,' not 'whatever the proposal's boosters prefer.'

The Legislature can propose changes to the constitution that go directly on the ballot for voter approval. But that power to bypass the governor's veto applies only to constitutional amendments, not garden-variety laws. The Legislature can't make unilateral changes to existing statutes merely by packaging them in the same bill as a constitutional amendment. If it could, the hallowed principle of separation of powers would be gutted.

Supporters of the two amendments emphasize that the bills putting these two questions on the ballot also included the proponents' preferred titles in a separate section. Here's the problem: The governor vetoed those bills. The Legislature didn't override either veto. While the amendments will come before all Minnesotans for a vote, the rest of the bills didn't become laws. The 1919 statute is still the law, and it commands Ritchie to pick a title.

We don't have to go far back to see how the system is supposed to work. The bill putting a constitutional amendment about transportation funding on the ballot in 2006 also included related provisions to raise gas taxes. Republican Gov. Tim Pawlenty vetoed the DFL-backed measure. When he did, the amendment went straight to the ballot and later passed, but the tax increase went to the dust bin.

The moral of that story applies here, too: The Legislature can't fly solo. It proposes bills for the governor's approval. To alter the Constitution, it proposes amendments, and then we voters hold veto power instead.

This year's divisive amendments unleash high emotions and bitter accusations. But constitutional rules are designed to set up a fair system no matter which party happens to control which branch of government. Instead of choosing sides and filing lawsuits based on their preferred outcome for these two amendments, legislators ought to take a longer view of the wisest election procedures.

If our representatives decide, after deliberation, to change the rules for preparing ballots, of course they can pass a bill doing so. But, as we learned in seventh grade, it won't become law unless the governor signs it.

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William McGeveran and Myron Orfield are law professors at the University of Minnesota.